Appeal from the Circuit Court of Du Page County. No. 10-DV-0816 Honorable Elizabeth W. Sexton, Judge, Presiding.
The opinion of the court was delivered by: Justice Hutchinson
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.
¶ 1 In May 2010, the State charged defendant, John M. Thompson, with two counts of domestic battery (720 ILCS 5/12-3.2(a)(1), (a)(2) (West 2010)), one count of battery (720 ILCS 5/12-3(a)(2) (West 2010)), and one count of resisting a peace officer (720 ILCS 5/31-1 (West 2010)), and defendant was released on bond. Thereafter, the State charged defendant with an unrelated felony and defendant was taken back into custody. The State initially opted to try the felony case first for speedy-trial purposes pursuant to section 103-5(a) of the Code of Criminal Procedure of 1963 (the speedy-trial statute) (725 ILCS 5/103-5(a) (West 2010)). Before bringing defendant to trial in either action, however, the State changed its election and brought defendant to trial in the current matter first for the purposes of a speedy trial. A jury found defendant guilty of resisting a peace officer, and the trial court sentenced defendant to time served. Defendant now appeals his conviction, contending that he was denied the effective assistance of counsel because his trial counsel did not file a motion to dismiss the charges on the basis that the State failed to bring him to trial within the speedy-trial term. We affirm.
¶ 3 The record reflects that, on May 26, 2010, the State charged defendant with two misdemeanor counts of domestic battery, one misdemeanor count of battery, and one misdemeanor count of resisting a peace officer. Defendant posted bond and was released from custody.
¶ 4 On August 10, 2010, the State charged defendant with an unrelated felony. Defendant was taken back into custody. On August 30, 2010, the trial court in this case exonerated defendant's bond nunc pro tunc as of August 11, 2010. At the August 30 hearing, defense counsel advised the trial court, "I'm not demanding a speedy trial in this case because it would elect on the felony [case]. *** It's just purely for credit." The trial court noted that the speedy-trial term was tolled.
¶ 5 On September 9, 2010, pursuant to the State's motion, the trial court continued the matter until November 29, 2010. At the September 9 hearing, defense counsel advised the trial court that, "even though [the speedy-trial] term is not running, we would object for the record."
¶ 6 On November 29, 2010, defendant answered ready for trial. The State advised the trial court that "there was some confusion" regarding the running of the speedy-trial term. After a short recess to confer with colleagues in the felony division, the State informed the trial court that the State was electing to proceed on the felony case first for the purposes of a speedy trial. The State further stated that, "if there is a [speedy-trial] issue on this, it would be tolled pursuant to our election." Defense counsel expressed her concern that, although the State was electing to proceed on the felony case first, that case did not have a trial date set. Defense counsel noted that, without a trial date being set in the felony case, this matter could be extended indefinitely. Defense counsel advised the trial court that "[t]here are [speedy-trial] issues, and I would ask that [the term] run until we have a definite answer or [the felony case is] set for trial." The State advised the trial court that defendant was agreeing to toll the speedy-trial term in the felony case and that there was "nothing we can do to force them to have the trial." Defense counsel responded:
"As long as [the State is] actually electing on that and that there are plans to have that set for trial, and that [the continuances in the felony trial] were on defendant's motion, then I would have no issue with that."
¶ 7 On February 9, 2011, the State advised the trial court that a date for defendant's felony trial had still not been set. The State advised the trial court that, "to avoid any argument that there has to be a trial date set in one of the two cases," the State would change its original decision and elect to try defendant's misdemeanor case first. Defendant filed a speedy-trial demand on that date. The trial court concluded that defendant's speedy-trial term in the misdemeanor case would begin to run on February 9, 2011. Defendant's trial occurred on April 6, 2011, and a jury found defendant guilty of resisting a peace officer. Defendant timely appealed.
¶ 9 The only issue in this appeal is whether defendant was denied the effective assistance of counsel because his trial counsel neglected to file a motion to dismiss on the basis that the State did not bring defendant to trial within the speedy-trial term. In support of this contention, defendant argues that, once the State changed its original decision and elected to try the misdemeanor case first for the purposes of a speedy trial, the State was required to bring him to trial within 120 days of the date he was taken into custody absent any delays attributable to him. Because he was taken into custody on August 10, 2010, and not brought to trial until April 6, 2011, defendant argues that the State failed to do so. Therefore, defendant maintains that a motion to dismiss on speedy-trial grounds would have been successful, and his trial counsel was ineffective for not bringing a motion. The State counters that it changed its original decision to elect defendant's felony case first after defendant's trial counsel in this case voiced her concerns that a trial date for the felony charge had not been set and that the charges in this case could remain pending indefinitely. Therefore, the State maintains that it gave defense counsel what she requested and, as a result, defense counsel was not ineffective for failing to file a motion to dismiss pursuant to the speedy-trial statute.
¶ 10 A defendant's right to the effective assistance of counsel is provided by the sixth and fourteenth amendments to the United States Constitution. People v. Angarola, 387 Ill. App. 3d 732, 735 (2009) (citing U.S. Const., amends. VI, XIV). To succeed on a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To satisfy the first prong, the defendant must show that his trial counsel's performance was deficient because the representation fell below an objective standard of reasonableness. People v. Harris, 206 Ill. 2d 1, 16 (2002). To meet the second prong, the defendant must demonstrate prejudice by showing that there is a reasonable probability that, but for trial counsel's errors, the result of the proceeding would have been different. Id. "The failure of counsel to argue a speedy-trial violation cannot satisfy either prong of Strickland where there is no lawful ...